Suchergebnisse

SummaryIn Canada Post Corp. v. Lépine, the Supreme Court of Canada upheld the lower Québec courts' refusal to recognize an Ontario judgment approving an out-of-court settlement of a class action that included Québec residents. In reaching its decision, the Supreme Court of Canada did not extend to the non-resident plaintiff members of the class the jurisdictional test applicable to defendants. The decision was based on the lack of procedural fairness accorded to the non-residents. The Court also rejected a literal interpretation of Article 3164 of the Québec Civil Code, which requires that the foreign court must have had jurisdiction in accordance with Québec rules, including the doctrine of forum non-conveniens. To apply this doctrine is not compatible with inter-provincial and international comity as it defeats the liberal approach taken by the Civil Code with respect to the recognition of foreign judgments. This settles a long-lasting controversy. As a result of this decision, enhanced procedural fairness has become the best defence available to non-resident, non-attorning plaintiffs in inter-provincial and international class actions. Finally, the Court hoped that, in the spirit of mutual comity, the provincial legislatures would develop more effective methods for managing jurisdictional disputes involving national class actions.

When the United Nations was created in 1945, its main purpose was to deal with threats to international peace and security in order to prevent states from waging aggressive wars. Today, especially since 9/11, terrorism, the spread of weapons of mass destruction, and internal conflicts involving massive violations of human rights are some of the new challenges confronting this organization. The Security Council, which is charged with the maintenance of international peace and security, has not been very consistent and quick in addressing these issues. As a result, when it has failed to authorize collective action, some states have resorted to unilateral military action to respond to real state and human security needs. Such action has prompted the international community to reconsider the international law rules applicable to these new challenges. This article considers whether a state or a coalition of states without UN authorization may or must take military action against another state sponsoring terrorism or depriving its nationals of their internationally recognized human rights.

In 1967, on the occasion of the hundredth anniversary of the Confederation, the author of this paper suggested that it was about time for Canada to join the Hague Conference on Private International Law. Such a move would show to everyone that Canada's legal horizons and objectives had become world wide. The government of the day followed this suggestion and, in 1968, Canada joined the Conference. Since that time, Canada has participated actively in its work as well as that of other international organizations devoted to the unification of law especially in the area of commercial law. It is, therefore, appropriate to examine recent trends in the field of private international law in Canada on the occasion of the hundredth anniversary of the Hague Conference and to ascertain the extent to which Canadian rules have been influenced by its conventions.

At present, the federal Parliament has exclusive jurisdiction over divorce under section 91:26 of the British North America Act, 1867.However, the desirability of integrating divorce law with the aspects of family and property law already within provincial jurisdiction has prompted the suggestion in recent years that the divorce jurisdiction be transferred to the provincial legislatures. The implementation of this suggestion would require modification of sections 91 and 92 of the British North America Act, 1867 and repeal of the 1968 Divorce Act. Each province would then be free to adopt divorce legislation which would reflect the social and ethical values of its residents and express its particular social philosophy. However, such a transfer of jurisdiction would require balancing uniform recognition throughout Canada of provincial divorce decrees and each province's right to exercise control over foreign decrees affecting its residents. Several approaches are possible, none of which is free from criticism.

Professor Castel discusses the methods used by Canadian Courts in asserting jurisdiction with respect to custody orders. Where conflicts exist between the statutes of one province, they are resolved by closely analysing the intent and scope of the statute concerned and its applicability to the circumstances of the particular case. With regard to conflicts between custody orders made corollary to a divorce decree under the Divorce Act, and those made pursuant to provincial legislation, the author suggests that no inflexible rule dictating which order would prevail can be given. The merits of the respective federal and provincial claims within this "co-extensive jurisdiction" can only be decided by means of a wide measure of judicial discretion. After enumerating the types of situations where conflicts of jurisdiction may arise and the means used by the courts to assert jurisdiction, Professor Castel argues that the test of ordinary residence should be universally accepted as the most reasonable and realistic basis upon which the courts can exercise jurisdiction, although the courts should still be able to use the criteria of physical presence and domicile if this is in the best interests of the child. With regard to the recognition of foreign custody orders the law, as laid down by the Privy Council in McKee v. McKee is that a custody order made by a foreign court does not preclude a Canadian Court from making an order as it sees fit since the foreign order does not have the effect of a foreign judgment and therefore comity does not demand its enforcement. The author, after observing that this approach encourages a wealthy parent to move a child from one jurisdiction to another in search of a court that will award custody to him, notes that the McKee decision is not necessarily binding on Canadian Courts and that it has not consistently been followed. He advocates the exercise of a wide discretionary power by the courts in the best interests of the child, thus following a via media between an a priori refusal to reconsider a foreign order and the making of a new order on the merits of the case.

This article is devoted to the question of whether the extradition from Canada of a fugitive Canadian citizen charged with having committed an act that constitutes a criminal offence for which he or she may be prosecuted both in Canada and in the requesting state is a violation of his or her right as a citizen of Canada to remain in Canada, that is guaranteed by section 6( I ) of the Canadian Charter of Rights and Freedoms.' In analysing this question we shall ( i ) give a brief history of and rationale for extradition, with emphasis on the variations in application by states of extradition of citizens; (2) assess whether section 6 ( i ) of the Charter of Rights ipso facto does in fact contain a right that extradition infringes; (3) enquire whether if indeed extradition infringes prima facie the section 6 ( i ) right to remain in Canada of a Canadian citizen, it is a reasonable limit, prescribed by law as can be demonstrably justified in a free and democratic society, even where he or she could be prosecuted in Canada on the same facts; (4) review the role of the Minister of Justice in extradition matters; (5) look at the comparative interests of states that have concurrent jurisdiction over the criminal offence and their impact on prosecutorial discretion in the requested state; and (6) discuss interpretation of extradition treaties.